It can get crowded, and tricky, when a victim's family wants to negotiate with the state, the defense, and the judge in a criminal trial. (Mike McLaughin/Reuters)

One of the most profound changes in criminal justice over the past 40 years has been the rise of the victims' lobby. Essentially shut out of the core of the process until the 1970s, the victims' rights movement today can cite legislation from sea to sea, chapter and verse under both federal and state laws, that broadens the rights of victims to participate in the trials of those accused of harming them or their families. The Department of Justice's 2012 "Attorney General Guidelines for Victim and Witness Assistance," for example, totals 66 pages and barely scratches the surface of what similar state guidelines reveal.

The immutable trio that once existed in criminal cases— judge, prosecutor, and defendant—now almost always resembles a quartet. Victims have a voice—and they use it. All 50 states now allow some form of "victim impact statement" at sentencing. Because such statements are often so compelling to jurors, defense attorneys frequently seek ways to blunt their impact. But these efforts almost always fail. Even judges who are sympathetic to the constitutional rights of defendants, who fret about the prejudicial impact of victim testimony, say they are bound by legislative declarations broadening the scope of victim participation in criminal cases.

But a pending Colorado case raises a profound question that few judges (or prosecutors or jurors) ever have to confront: What happens when the victims of violent crime seek to speak out on behalf of the defendant and not the state? What happens when the family member of a murder victim seeks leave to beg jurors at sentencing to spare the life of the man who killed their son? What responsibility does the prosecutor have in that case? What obligations do the courts have? Do victims' rights sound only when they favor the government and the harshest sentence, or do they sound as well when they cry out for mercy?

So far, the prosecutor in the case, Arapahoe County District Attorney George Brauchler, has answered those questions clearly: He wants to block one couple's efforts to speak out against the death penalty for the man who murdered their child. Brauchler has filed a motion in a pending case seeking to bar Bob and Lola Autobee from participating in the sentencing phase of the trial of Edward Montour, their son's killer. The law only guarantees the rights of victims to "discuss the harm that resulted from the crime," Brauchler argues. But I haven't been able to find a single victims' right advocate who believes that's true.

People of the State of Colorado v. Montour

There doesn't seem to be much doubt, reasonable or otherwise, that Edward Montour killed Colorado corrections officer Eric Autobee in a prison kitchen on October 18, 2002. (Montour was in that kitchen, and in that prison, because he was serving a life sentence for killing his infant daughter.) Less than one year after Autobee's death, Montour pleaded guilty to first-degree murder and was quickly sentenced to death by a Colorado judge. But that death sentence was overturned, in 2007, after the United States Supreme Court ruled in Ring v. Arizona that judges alone, without juries, could not impose death sentences.

Then, last year, a trial judge overturned Montour's conviction and allowed the inmate to withdraw his initial guilty plea in the Autobee killing. Montour was not adequately defended by a lawyer at the time of that plea, the judge ruled, and had a documented history of mental illness. A new trial was ordered. Montour, through his attorney, said he would re-plead guilty to Autobee's murder if he could be spared the death penalty and receive a(nother) sentence of life in prison without the possibility of parole. The prosecutor, Brauchler, rejected the offer and went ahead instead with now-pending capital case against Montour.

The last time Montour faced trial for Autobee's death, the victim's family supported the death penalty as an option. Not this time. This time, having educated themselves about capital punishment, and better understanding the nature of Montour's mental illness at the time of Eric's death, the Autobees have been vocally, stridently, ceaselessly against the imposition of death in this case. Earlier this month, for example, as potential jurors in the Montour case were lined up outside the courthouse waiting to learn about the case for which they were summoned, the Autobees picketed the line and pleaded with Brauchler to spare their son's killer.

Episodes like this -- and the media attention they inevitably generated -- prompted Brauchler, the prosecutor in the Montour case, to remove the family from his preliminary list of witnesses to be called during the sentencing of the case. And that removal, in turn, has prompted Montour's attorneys to ask the trial judge in the case to allow the Autobees to testify during sentencing. That prompted an aggressive response from Brauchler, arguing that Colorado's victims' rights laws don't apply to "mitigating" factors during sentencing but only to "aggravating factors." And that is where we stand today.

The Autobees

The parents of the victim have spoken, and eloquently so, about the reasons why they have chosen to oppose the death penalty in this case. Below, from a court filing last Friday, is the essence of their claim:

Bob would like any jury considering the appropriate penalty for Eric's killer to know who Eric truly was and how his loss has impacted the Autobees. The Autobees loved Eric deeply, and now remember him for his peace-loving nature, his love of the outdoors, and his innate desire to find moments of calm when hunting or fishing. Eric was a gentle soul who would hold Bob's hands even when he was in his 20's. Eric started his career in the culinary arts and then, like Bob, became a prison corrections officer.

Despite the inhumanity he saw around him, Eric would not speak disdainfully of inmates, but, instead, recognized their human dignity. Eric accomplished much in his short time on earth — he saved three lives before he died — but missed out on even more. It pains the Autobees to consider the many milestones in Eric's life that might have occurred were he still alive, including marriage, children, and career advancement.

The crime affected the Autobees not just because of their beloved son's loss, but also because of who they became after this loss. After Eric's death, their warm feelings of love that Eric always nurtured quickly turned into cold feelings of vengeance and violence. Originally, the Autobees fervently supported the prosecution's efforts to seek absolute retribution. Over time, however, and with reflection, they realized that Eric would not have wanted this for himself or for them; Eric would not have wanted someone killed in his name, nor would he have wanted his family to live in the darkness of hatred. The Autobees know this because they know how Eric lived: by loving life, saving lives, and extending mercy to the merciless.

The effect of the crime on the Autobees cannot be separated from this ongoing death penalty prosecution. Bob and his family have found healing in the forgiveness that they have extended to their son's killer. However, the prosecution strives to forever undo this healing by seeking to avenge one killing with another, over the family's pleas for mercy. For the Autobee family, a death sentence and the accompanying years of litigation, all supposedly done in their son's name, would rob them of peace. For, in the eyes of society, their son's name forever would be associated with cruelty and violence, rather than the human dignity and mercy he embodied in life.

Call and Response

Brauchler surely has no moral answer for this, and the legal answer he has ginned up barely passes the straight-face test, but that has not stopped him from seeking to silence the Autobees' voice during the upcoming trial. "To permit testimony concerning the victims' general view of the death penalty or whether this particular defendant should be executed or given a life sentence invades the province of the jury and should not be permitted," prosecutors told the judge earlier this month. Can you imagine them making that argument if the Autobees were still advocating for Montour's death?

Colorado law "only guarantees the right of the victims to discuss the harm that resulted from the crime," Brauchler argues, and this limits "evidence from the victims to the characteristics of the victim and the impact of the crime on the victim's family." It is "not the court process that can be attacked by the victims," prosecutors assert, before claiming that Montour's Eighth Amendment rights will be implicated if the Autobees speak out in his favor. You don't need to be a lawyer, or a juror, to understand that this is a terrible argument. And Brauchler cites no controlling Colorado law in support of it.

In their response, the Autobees' attorney seem incredulous as they recite the provisions of Colorado law that support their view. "A crime victim," they told the court, has the "'right to appear, personally or with counsel, at the sentencing proceeding and to adequately and reasonably express his or her views' regarding 'the type of sentence which should be imposed by the court.'" Under Colorado law, the Autobees added, "prosecutors are required to support -- not oppose -- this right by 'inform[ing] each victim of' his or her 'right to 'express an opinion at the sentencing hearing or any sentence proposed to the court for consideration" (emphasis in original).

And then the Autobees shared with the trial judge what they really think is happening here. "Because the Autobee family's beliefs conflict with the prosecutions' agenda," the family's lawyers wrote, "the prosecution has relegated [them] to the status of second-class victims." Brauchler has it all wrong, the family asserts. Prosecutors should be heeding the wishes of the family members instead of putting their own priorities first. What the family really is saying, however, is that the world of victims' rights is far different than it was 40 years ago and that prosecutors can't always have things their own way.

The Lobby

Although this conflict now is unfolding in Colorado, it's got national implications. The Autobees are not the first family to seek mercy for someone who took the life of a loved one. And Brauchler isn't the first prosecutor to seek to block such a family from getting through to a jury. In fact, this sort of dispute happens more often than you might think. So I called around to a few national victims rights organizations with a simple question: Does your organization support the families of victims who oppose the imposition of the death penalty in a particular case? Here are some of the responses I received:

We support crime victims in seeking justice in the way they are comfortable. There are victims who seek capital punishment and those who strongly oppose it. Restorative Justice is the term used for this type of model. It focuses on addressing the needs of the victim, the offender and the community, not the justice system.

It is definitely NOT for all victims/survivors but there is a significant contingent within the crime victim assistance network who support this model. At NOVA, our focus is always on assisting the crime victims and their families. We are very careful not to tell them what they need, or how to heal. We try to educate and support them in their choices.

We support the crime victim in pursuing the justice they seek, regardless of the interests of the prosecutor, law enforcement or others. Yes, we have supported victims in the past who object to capital punishment. We also encourage all other participants in the process to support and respect the victims in their position.

More people likely understand that you can’t automatically assume that losing a loved one to murder will mean that you support the death penalty, nor does opposition to the death penalty mean you don't want the killer or killers brought to justice, and it does not necessarily mean you have forgiven the murderer. Murder and the justice system are complicated, as are the views and experiences of the victims and families who are affected by it. We must not try to simplify this, but allow victims their unique and complicated responses to the trauma and horror of having a family member murdered and the criminal justice process that occurs after that.

Despite the wider cultural awareness of victim opposition to the death penalty, unequal treatment of victim family members by prosecutors in capital trials is still a problem, one that exists largely below the public radar, in District Attorney offices across the country, where often victim family members don't know their rights and there is no one around to step forward and advocate on their behalf.

It occurs, for example, that if two surviving family members want to give a victim impact statement during the sentencing phase of the trial, the prosecutor will allow the pro-death penalty survivor to speak but not the survivor who opposes the death penalty, regardless of the fact that no mention of the victims views of what the sentence should be is allowed in Victim Impact Statements.

The point is not that victims should get to determine sentencing. The point is that victims’ rights should be granted to all victims, regardless of their position on the death penalty, or perceived "cooperation" with the District Attorneys office. Disagreeing with the prosecutor – opposing the death penalty when the prosecutor is seeking a death sentence – should not mean that you are silenced, treated as "part of the defense team" and not a "real" victim, or denied the right to speak about the impact of the murder on you and your family.

It's not the Autobees who are the outliers here. It's the prosecutor. He can hardly purport to serve as the "conscience of the community," or claim he is following clear Colorado law by ignoring the wishes of the one family in the state that has earned the right to speak at the Montour trial. Victims' rights mean rights for all victims and not just those who toe the government's line. The jury in Edward Montour's case deserves to hear what the Autobees have to say, the family has a right to say it in court, and no lawman has the right to come between that vital communication. A ruling from the trial judge is expected any day.

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